In the Federalist Papers, James Madison invited readers to consider a hypothetical Constitution providing for the supremacy of state law over federal law. In that case, he said, “the world would have seen . . . the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.” The modern doctrine of non-self-executing treaties (NSE doctrine) illustrates the problems posed by Madison’s hypothetical monster.

In practice, judicial application of NSE doctrine is almost entirely arbitrary. Courts decide whether a treaty is self-executing by invoking a fictitious “intent of the treaty makers.” If a court holds that the treaty makers intended the treaty to be self-executing, it places congressional inertia on the side of treaty compliance. But if the court holds that the treaty makers intended the treaty to be non-self-executing, it places congressional inertia on the side of non-compliance. Since courts do not want to admit they are making decisions about treaty compliance, they hide behind a fictitious “intent of the treaty makers” to evade responsibility. Insofar as state courts engage in this behavior, Madison’s monster is real. However, federal court decisions applying the fictitious intent test are more numerous than state court decisions. Therefore, the main problem involves a transfer of power over treaty compliance decisions from the political branches to federal courts. Treaty violations by state and local government officers are largely a consequence of federal court decisions applying a fictitious intent test to justify a holding that a treaty is not self-executing.

This article analyzes the fictitious intent test, focusing on the practical implications for the supremacy of treaties over state law. Part One distinguishes among three concepts of self-execution. Part Two summarizes the historical evolution of NSE doctrine. Part Three analyzes the Supreme Court’s opinion in Medellín v. Texas; it demonstrates that the Court applied a fictitious intent test in Medellín. The Court’s decision effectively authorized state government officers to breach U.S. treaty obligations, contrary to the express policy goals of the federal political branches. Part Four presents recommendations designed to ensure that, in matters related to treaty implementation, the head retains control of the members — not just in theory, but also in practice.

This article is another contribution to the excellent forthcoming BYU Law Review symposium on treaty law (my contribution, also on self-execution, is here).

I completely agree with Professor Sloss about what he aptly calls the problem of "fictitious intent" in treaty interpretation. Too often, judges or other interpreters are not finding anything in the text of the treaty that suggests non-self-execution; rather, they are asking whether it seems reasonable to think that the treatymakers wanted the treaty to be non-self-executing. Leaving aside the question whether the treatymakers have constitutional power to make a treaty non-self executing (that's the subject of my paper), the problem is (Professor Sloss argues, and I agree) that a judge in this exercise ends up asking whether it's reasonable for the treaty to be non-self-executing, which in turn is really asking whether the judge thinks it ought to be non-self-executing. Thus the views of the judge substitute for the views of the treatymakers.

I would add that this is just a specific case of a wider interpretive problem that arises interpreters try to guess what the drafters wanted, instead of trying to figure out the meaning of the words the drafters wrote. What tends to happen is that the interpreter concludes that the drafters would probably want what the interpreter thinks is the best result. After all, the drafters were smart, reasonable, practical people, and so is the interpreter. So it's natural that they would come to the same conclusion!

08/30/2015

It's reported that President Obama will change the name of Alaska's highest peak from Mount McKinley to Denali. But wait, does the President have constitutional power to rename mountains?

Almost certainly not. (And, even worse for him, the name McKinley appears to be incorporated into a statute. And, even worse than that, apparently there have been legislative efforts to change the name, sponsored by Alaska Senator Lisa Murkowski, that have failed). So the President's authority must come from Congress. And indeed there is something called the U.S. Board on Geographic Names that (according to its website) was "established in its present form by Public Law in 1947 to maintain uniform geographic name usage throughout the Federal Government." So I assume the Board has delegated authority to decide on the name, and the President has directed the Board to make this decision.

But wait, does Congress have constitutional power to rename a mountain? In the general case, I'd say no. Obviously it's not an expressly enumerated power, and I don't see how mountain names are sufficiently related to any enumerated power (even interstate commerce) to make their renaming "necessary and proper" to carry such power into execution. That being the case, shouldn't place name be reserved powers of the states?

In this case, though, the mountain is on federal land. Perhaps, then, Congress' power comes from Article IV, Section 3's power to "make all needful Rules and Regulations respecting the territory and other Property belonging to the United States." In the alternative, the Board on Geographic Names might argue that it is simply deciding what the federal government will call the mountain, not regulating what others may call the mountain. Indeed, the Board's website insists -- somewhat hollowly, I think -- that its job is "standardizing (not regulating)." But I would think it something of a stretch for the Board to "standardize" a name to something to which the local state authority objects.

Sadly, though, there's apparently no material for a federalism dispute here. Alaskan authorities have been trying to rename the mountain Denali for years ... blocked by the federal representatives from Ohio (McKinley's home state). So the renaming is a triumph of federalism, in a sense; whatever part of our federal system is in charge of deciding on the name of a mountain in Alaska, it surely isn't Ohio.

Arizona State Legislature v. Arizona Independent Redistricting Commission might be viewed as a dispute about the control over redistricting, with a heavy emphasis on the perceived problems of and solutions to partisan gerrymandering and incumbent entrenchment. Or the case might be about the power of the people to wrest control from an unresponsive legislature and pass their own laws via ballot initiative. But that is not really this case. This Article notes that it is something more nuanced. This case is less about the ballot initiative or about partisan gerrymandering, and more about a delegation of legislative power from the legislature to an unelected agency.

The case turned almost exclusively on the definition of the word “Legislature” as it appears in the Constitution, which has little precedent in Supreme Court opinions except for a couple of century-old cases of tangential relevance. But there is also a rich history of interpreting and constructing the Elections Clause — but it has occurred in Congress and in the states. These historical election disputes were all but absent in the Supreme Court, effectively ignored.

This Article examines the dispute over Arizona’s independent redistricting commission largely through a critique of the delegation of power from the legislature to an unelected entity. It then examines the historical records from two sources. First, it scrutinizes pre-Seventeenth Amendment discussions about the power to delegate legislative power to the people. Second, it consider and congressional adjudications about election disputes concerning the proper role of the state legislature and delegations of the lawmaking power to other entities. These two examinations conclude that the historical understanding of the power of the “Legislature” precluded a delegation of its power to another entity. It concludes with some concerns about several justices’ conclusions in the case, along with parting thoughts about the impact of these historical records in future litigation.

Michael B. Mukasey, a former Attorney General of the United States (and former Chief Judge of the United States District Court for the Southern District of New York), has stated that if former Secretary of State (and former Senator) Hillary Clinton is convicted under 18 U.S.C. § 2071, then she is disqualified from holding the presidency. See Transcript, MSNBC MORNING JOE (Aug. 24, 2015, 06:45:25 AM), Online. Likewise, a Washington, DC think tank has just published a white paper taking the same position. See Legal Analysis of Former Secretary of State Hillary Clinton’s Use of a Private Server to Store Email Records, CAUSE OF ACTION: ADVOCATES FOR GOVERNMENT ACCOUNTABILITY (Aug. 24, 2015), available online. Mukasey’s and Cause of Action’s position is fundamentally misconceived; indeed, neither puts forward any authority for the position that Section 2071 or any other federal statute creates or could create a disqualification in regard to any elected federal position, including the presidency.

And Mukasey concedes!

[O]n reflection . . . Professor Tillman’s [analysis] is spot on, and mine was mistaken. . . . The disqualification provision in Section 2071 may be a measure of how seriously Congress took the violation in question, and how seriously we should take it, but that’s all it is.

08/28/2015

Richard M. Re (UCLA School of Law) has posted The New Holy Trinity (18 Green Bag 2d, 2015) on SSRN. Here is the abstract:

There’s a familiar story about statutory interpretation in the Supreme Court. Once upon a time, the Court cared primarily about legislative purpose, even if it defied clear statutory text. But then Antonin Scalia came to town, became a justice, and laid down a new law: textualism. Central to Scalia’s success was his association of purposivism with a century-old precedent called Holy Trinity. Recently, however, purposivism seems to have evolved and, as a result, to have gotten the upper hand. Instead of adhering to Scalia's New Textualism, the Roberts Court has repeatedly and visibly embraced what might be called “The New Holy Trinity.” This approach calls for consideration of non-textual factors when determining how much clarity is required for a text to be clear. This apparent methodological shift merits attention -- and may have implications for constitutional law.

Highly recommended. If Re is right, then the Supreme Court's recent statutory interpretation cases conflate interpretation and construction. Considerations relevant to the normative question as to what legal effect the text should be given are used to determine the factual question as to what communicative content (or linguistic meaning of the text) is.

But, ultimately, his argument fails because it relies on a dubious distinction between “complete, political jurisdiction; and… partial, territorial jurisdiction.” Eastman explains that person subject only to the latter “does not get to vote, or serve on a jury; he cannot be drafted into our armed forces; and he cannot be prosecuted for treason if he takes up arms against us, because he owes us no allegiance.” Eastman argues that birthright citizenship applies only to children of parents subject to “complete political jurisdiction.”

One obvious problem with this distinction is that it is nowhere to be found in the text of the Fourteenth Amendment, “which simply refers to “the jurisdiction” of the United States. This language encompasses all forms of jurisdiction, not merely that which applies only to citizens subject to “complete political” jurisdiction. The framers could have used the phrase “complete political jurisdiction” (or similar language), but did not. Another problem with the complete jurisdiction theory is that it would enable Congress to deny citizenship even to children of legal immigrants who are not yet citizens themselves. After all, they too do not get to vote or serve on juries, and some of them might not be subject to a military draft if we had one.

I agree that John Eastman's article is a leading argument for the other side. But also I agree with Professor Somin's response. (Plus he has a favorable comment on and quote from my prior post. Much appreciated).

In a previous post, I raised the first of my two objections to Stephen Griffin's criticism of using original public meaning (OPM) to understand the phrase "executive Power" in the Constitution. Briefly, I argued that Professor Griffin erred in thinking that OPM methodology focuses exclusively on pre-drafting uses of the relevant phrases (in this case, the use of "executive" power by authorities such as Locke, Blackstone and Montesquieu). To the contrary, while pre-constitutional usage is important to OPM, so also is other evidence of public meaning, such as drafting and ratifying history and post-constitutional practice.

I also acknowledged, however, the OPM methodology may (depending on the person) heavily emphasize pre-drafting usage (as my scholarship often has, including with respect to executive power). Here, I will say a little in defense of that approach.

When people use words in a legal documents, or read words in a legal document, they don't read them in isolation. Rather, they read them in the context of previous legal writing, where it has used those words in a particular way. This, after all, is how we give meaning to any set of words -- not by thinking about what they ought to mean, but by thinking about what they have meant, as used in familiar writing or speech. So when someone in 1788 read the words "the executive Power" in the proposed Constitution, it's natural that they asked themselves, what did "executive Power" mean when used in familiar legal and political writing of the recent past? That is how we would expect them to understand the communicative content of the proposed Constitution.

Among the most familiar legal/political writings in eighteenth century America were the works of John Locke, Baron Montesquieu and William Blackstone. All of them discussed executive power. And all OPM methodology claims is that the meanings these sources gave "executive power" is an important clue as to the meaning Americans of 1787-89 attached to it.

Professor Griffin objects that these writers long pre-dated the Constitution (Locke writing in the late seventeenth century and Montesquieu and Blackstone in the mid-eighteenth century) and wrote in other countries. Historians of the revolutionary period in America have shown, he says, that substantial changes occurred in Americans' thinking about executive power after the mid-eighteenth century, which OPM theorists ignore.

Of course any appropriate OPM approach must take into consideration such changes, and it's undoubtedly true that Americans in the 1770s and 1780s had evolving views of the best allocation of executive power. (I talk about this in particular in The Constitution's Text in Foreign Affairs, Chapter 6). But here it is important to distinguish (as Professor Griffin does not) between the meaning of "executive power" and the proper allocation of executive power within a government. Political writing of the time defined "executive power" (and legislative power) not in terms of which branch exercised it, but by its nature. How the executive power should be allocated was a separate question, and one sharply debated at the Constitutional Convention and elsewhere. Pure separation of powers theory held that all executive power should be allocated to a single chief magistrate. Other views contended that the powers should be more mixed (as with a chief magistrate exercising a veto over legislation, or a representative assembly having control of some "executive" decisions).

These debates took place against a linguistic backdrop provided by Locke, Blackstone, Montesquieu and similar writers who discussed executive and legislative powers. Although written earlier and in a different country, as Professor Griffin says, these were the main reference books of the founding generation in America. True, the founding generation did not agree in all respects with the allocation of executive power recommended by these writers -- most obviously, they thought the chief magistrate should not control war initiation and treaty making. But in discussing these questions, they used the vocabulary of the legal/political writers with which they were familiar. Thus, for example, at the Convention Madison objected that the Constitution should not give "executive" power to the President, at least without limitation, because that would indicate the President had war initiation power. In taking this position, he was using the Blackstone/Montesquieu vocabulary, but objecting to their recommended allocation. (The Constitution dealt with his objection by expressly giving Congress power to declare war, after which Madison went along with the grant of executive power to the President).

To be sure, it's possible that the founding generation rejected the Blackstone/Montesquieu vocabulary as well as some of their proposed allocations. So OPM methodology would require attention to how "executive power" was used in America as well. And as Professor Prakash and I outlined, there is substantial evidence that Americans continued to use it as Blackstone and Montesquieu had (basically, to mean law execution power and foreign affairs power). To pick one example we discussed, the influential 1778 Essex Result, written during the debate over the Massachusetts Constitution, used executive power in this way. But in any event, because Blackstone and Montesquieu were in such wide use in America, and because they gave executive power a particular meaning, I think something of a presumption lies in favor of their definition (though not their allocations), unless it is shown that their meanings were abandoned.

In sum, OPM methodology looks at a wide range of historical evidence to determine the meaning of a phrase such as "executive Power" but it may legitimately emphasize pre-constitutional uses by authoritative works in common circulation. These works provided at least the starting point for the founding generation's vocabulary, so it is appropriate to start with them. Contrary to Professor Griffin, I see nothing wrong with this approach either generally or with regard to executive power. It may be that Professor Griffin is actually critiquing faulty uses of OPM methodology (in which case I agree with him), but the fact that OPM is sometimes done badly does not mean it fails as a methodology.

08/26/2015

On the subject of birthright citizenship, Mike Ramsey recently wrote: "it's evident from nineteenth-century international law who might be born in the United States but not be 'subject to the jurisdiction' of the United States: children of ambassadors and other diplomatic personnel." Okay, but what about nineteenth-century national law, as opposed to international law?

There were two federal statutes in the nineteenth century that seem like very good evidence (at least as good as any international law) as to who might be born in the United States but not be "subject to the jurisdiction thereof". Those laws are the Civil Rights Act of 1866, and its verbatim reenactment in 1870 (the Fourteenth Amendment took effect in 1868). Both of those federal statutes said: "That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." It seems clear from those national laws that people who were "subject to any foreign power" could not take advantage of birthright citizenship. That includes diplomats, but it probably also includes people who lawfully belong in a foreign country instead of in this one. How could someone possibly belong in a foreign country according to the law, and yet not be subject to a foreign power?

The leading case on birthright citizenship was United States v. Wong Kim Ark. The Court in that case did not explicitly address illegal immigration. But the Court did explicitly say this: "In the forefront [i.e. the beginning]...of the civil rights act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms." The Court therefore wanted people to look not just at international law for the meaning of the Citizenship Clause, but also to the foremost national law on that subject. And, looking at the general words "not subject to any foreign power," I am hesitant to say that people belonging outside this country are covered by those words.

The Court decided Wong Kim Ark in 1898, long after the Citizenship Clause took effect in 1868. All I’m saying about Wong Kim Ark is that I happen to agree with its statement about the Civil Rights Act being relevant to the meaning of the Citizenship Clause, and of birthright citizenship, and of the exceptions thereto. Also, I admit that the language of the Civil Rights Act is not crystal clear, but it does provide a significant elaboration of the Citizenship Clause. Perhaps the greatest ambiguity in the phrase “subject to any foreign power” is whether it covers legal visitors from foreign countries aside from diplomats, in addition to covering people who are trying to immigrate here illegally. But either way, the phrase covers the latter, and I doubt that the U.S. Supreme Court would ever overturn the conclusion in Wong Kim Ark that the phrase does not cover the former. Let me hasten to add: I do not doubt the power of Congress to confer U.S. citizenship on the U.S.-born children of illegal immigrants, and perhaps Congress should do so in many types of cases. I’m just saying that nothing like it is required by the Fourteenth Amendment.

Mike Ramsey seems to take the position that, if a person is even partly subject to the jurisdiction of the United States, then citizenship at birth is a constitutional right. But, if a foreign government waives diplomatic immunity as to parking tickets for all its diplomats in the United States, then birthright citizenship kicks in per the Citizenship Clause? That seems unreasonable. Relatedly, suppose that Congress decides to treat people who are unlawfully present in the United States pretty much the same way as Congress already treats diplomats; would Mike then say that there’s no more constitutional right to citizenship at birth for such immigrants?

Getting back to the Civil Rights Act and its language about being “subject to any foreign power,” one might ask what difference it makes whether a foreign citizen is trying to establish permanent residence in the United States legally or illegally? To my mind, a person is more subject to a power that he cannot lawfully emigrate from, as compared to a power that he can lawfully emigrate from. In that sense, people in the United States unlawfully are more subject to a foreign power than if they were here lawfully.

In other words, there are very good reasons to maintain that according to American principles citizenship is reserved to people who have chosen to be American. As a practical matter, their children are also citizens, but, as the naturalization act of 1790 notes, not their grandchildren if the family has remained outside the United States, choosing not to participate in its civic life. America has traditionally not been a nation based upon bloodlines, after all. (And what is family unification if not a policy of making bloodlines paramount?) That is why we have regularly naturalized new citizens in significant numbers. That said, doing so is a choice we the people have the right to make or we cease to be our own governors. There is nothing in the 14th Amendment, reasonably construed, that suggests otherwise. The 14th Amendment can be read to ensure that the children of anyone who we have agreed to come reside with us permanently are citizens, but not those who we have admitted only on a temporary basis or those who break our laws to enter.

This is a good articulation of the originalist argument against birthright citizenship for children of illegal aliens, but I'm not persuaded (my prior views are here).

Professor Samuelson says "it is best to be grounded in constitutional principles and a close reading of the text." I agree, but he really has only one textual argument (which oddly he puts in parentheses):

(It is also worth noting that in formal grammar, “the jurisdiction” implies complete jurisdiction. By contrast one would have to specify “some” or “any” jurisdiction.” ...)

He needs to make this move, because his textual argument only works if the children in question are not "subject to the jurisdiction" of the United States. Since they obviously are subject to U.S. jurisdiction, opponents of birthright citizenship must add the word "exclusive" (or "complete") -- that is, not "subject to the exclusive jurisdiction." That would get the result they want, because children of illegal aliens (who are typically also born citizens of the country of their parents' citizenship) are not subject to exclusive U.S. jurisdiction. But the argument is substantially undercut by the fact that the critical word doesn't appear in the clause.

Professor Samuelson's attempt to read in "complete" (by which I assume he means "exclusive") simply doesn't work. Whatever he means by "formal grammar," the common usage of "jurisdiction" does not operate the way he says it does. If I go to Mexico, I am subject to "the jurisdiction" of Mexican law and Mexican courts so long as I am there; but (as a U.S. citizen) I also remain subject to "the jurisdiction" of the United States with respect to laws the U.S. has made extraterritorial. Jurisdiction is typically concurrent with respect to citizens of one country present in another, but it remains "the" jurisdiction.

It's worth noting too that if Professor Samuelson were correct on his textual point, children of legal resident aliens would generally not be birthright citizens either. Most countries (like the U.S.) recognize children of citizens born abroad to be citizens, and most countries (again like the U.S.) claim extraterritorial jurisdiction over their citizens. Thus the U.S. jurisdiction over children of legal aliens is no more "exclusive" or "complete" than U.S. jurisdiction over children of illegal aliens. But Professor Samuelson shies away from making this more expansive claim, probably because he knows that the children of legal aliens were always regarded as U.S. citizens, including under common law prior to the Fourteenth Amendment, and there is little basis for thinking the Amendment was designed to change this.

The rest of his arguments are mainly appeals to abstract principles or to what various individuals said at various times in the eighteenth and nineteenth century. But these observations don't override the Constitution's text nor make its plain meaning implausible.

08/25/2015

In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian. I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.

In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.

The Framers of the Constitution wanted to establish a more republican version of the English Constitution. They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature).

At the same time, though, they were not simple democrats. They had seen how what they perceived as excessive democracy and a lack of checks and balances at the state level had resulted in instability and poor legislation. The problem was how to introduce the English limits on democracy without a monarchy and an hereditary aristocracy.

Supermajority rules were one of the principal means that the Framers employed. First, various traditional English protections were changed into ones with supermajority rules. For example, the King’s absolute veto and unilateral power to make treaties, both of which were inappropriate to a republican executive, were replaced with a provision that employed express supermajority rules (a qualified veto and the power to make treaties with a supermajority of the Senate). Conviction for impeachment, which had resided in the aristocratic House of Lords, was placed in the more republican Senate, but now required a supermajority.

Second, unlike the English system, which allowed the King-in-Parliament to pass any laws it desired, the Constitution imposed certain rules restricting the legislature, such as the individual rights provisions of the Bill of Rights. But these provisions were not made absolute; instead, they could be overridden by constitutional amendment through a strict supermajoritarian process. Finally, the ordinary process for legislation (borrowing most closely from the English system) imposed tricameralism, which operates as a kind of supermajority procedure.

Thus, the Framers established a republic, not a democracy, and they did so largely through supermajority provisions that placed checks on the public without employing either a monarch or an aristocracy.

Finally, the Framers used a supermajority rule to enact the Constitution as a whole. To establish the Constitution, 9 of the 13 states had to agree to it. (And the Framers then used a similar supermajority rule for constitutional amendments.) Thus, the entire process for enacting constitutional provisions – which was intended to preserve people’s rights and to promote the public interest – was entrusted not to a unanimity rule or to a majority rule, but to a supermajority rule.